2012 Term in Review: Figuring out why some justices switched sides (Part 1)

July 2, 2013

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonOver the past month, I’ve made references to several different Supreme Court rulings that have found the justices in unique ideological alignments.

As promised, I’m going to delve into the specifics on the significant cases which made allies out of the some typically ideologically opposed justices.

Maryland v. King

Majority: Kennedy, Roberts, Thomas, Breyer, Alito

Dissent: Scalia, Ginsburg, Sotomayor, Kagan

King is the “DNA cheek swab” case in which the Supreme Court upheld law enforcement’s collection of DNA from the inside of an arrestee’s cheek when the individual was “charged with a serious crime.”  The DNA in King was used to link the defendant to an unsolved rape case from 2003, for which he was charged and convicted (more details on the case here).

The conservative wing of the Court (Roberts, Scalian, Kennedy, Thomas, and Alito) is typically less friendly to criminal defendants than the liberal wing.

However, in this case, we find the usually liberal Justice Breyer siding with the court’s conservatives in upholding King’s conviction, and Justice Scalia siding with the remaining liberals (Ginsburg, Sotomayor, and Kagan) in dissenting.

Justice Scalia made headlines in this case when he took the rare step of reading his full dissent from the bench, which signaled how strongly he disagreed with the majority.

What made the reliably conservative Scalia join with some of the Court’s most liberal members?

His originalism, that is, his judicial philosophy that holds that the Constitution should be interpreted based on what it meant at the time of its ratification.

In his dissent, Scalia argued that “[a]t the time of the Founding, Americans despised the British use of so-called ‘general warrants’” – warrants not grounded in some particular offense.  Scalia argued that these cheek swabs were such warrants.

What about Breyer and his departure from his liberal colleagues?

Justice Breyer is known for his judicial “pragmatism,” which focuses on the consequences of a particular ruling or interpretation of law, usually at the expense of a more strict statutory interpretation.

In joining with the conservative majority, Breyer probably figured that the DNA swabs would be a great tool for law enforcement, and that the Fifth Amendment searches weren’t terribly significant (as long as they were limited to arrestees charged with “serious crimes”), so the benefits probably outweighed the drawbacks in his mind.

These theories, as to Scalia’s and Breyer’s respective judicial philosophies leading to their departures from their respective ideological camps, are further demonstrated by the other DNA sampling-by-law-enforcement case from this past term:

Missouri v. McNeely

Majority: Sotomayor, Scalia, Kennedy, Ginsburg, Kagan

Dissent: Roberts, Breyer, Alito, Thomas

Breyer is found in the dissent in this case, which held as unconstitutional a police officer’s blood draw of a driver stopped on suspicion of driving while intoxicated without a warrant and without the driver’s consent.

The dissent, written by Chief Justice Roberts, discusses how the majority’s ruling will make it more difficult for police to enforce DWI laws, and further, asserts that “[a] police officer reading this Court’s opinion would have no idea – no idea – what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test.”

To be sure, the dissent contained enough legal support to back up its conclusion, but it was clearly far more concerned with the practical consequences of the ruling than the majority opinion.

The majority, by contrast, was more concerned with keeping with “Fourth Amendment restrictions” on searches and seizures, finding that a “careful case-by-case assessment of exigency [(circumstances allowing exceptions to Fourth Amendment prohibitions on warrantless searches and seizures)],” not a “categorical rule,” is required.

Justices Scalia and Breyer seemed willing to break from their normal ideological camps, in criminal law matters at least, on this issue.  But the vast majority of other divided criminal law decisions this term found these two back in their normal blocs, true to form.

That doesn’t mean, however, that we didn’t have another divided criminal law ruling that found one justice defecting to the opposite political camp…

Alleyne v. United States

Majority: Thomas, Ginsburg, Breyer, Kagan, Sotomayor

Dissent: Roberts, Scalia, Kennedy, Alito

In this final criminal law ruling, it was Justice Thomas, rather than Justice Scalia, who joined with the liberals in the majority opinion.

In Alleyne, the Supreme Court, in an opinion authored by Justice Thomas himself, held that where “mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.”

Justice Thomas, like Justice Scalia, is an avowed originalist.  However, as noted above, Scalia didn’t side with Thomas’ majority in Alleyne; nor did Thomas join with Scalia in King or McNeely.

The reason for this is likely that, although the two both seek an originalist interpretation of the Constitution, they may often each arrive at different results.

Because each justice is human, each may have certain beliefs that influence his or her interpretation, even if the same “originalist” formula is used.

For Justice Thomas, the Sixth Amendment right to a jury trial seems to be of particular import, since he has regularly taken positions upholding that right, including in a recent case from last term.

Thus, you can probably chalk this one up to Justice Thomas’ originalism leading him to a strong defense of the Sixth Amendment jury trial right.

Although Thomas is normally one of the least likely justices to side with the liberals, he’s probably a safe bet to do so when the jury right is at issue.

Stay tuned for the next and final part of this series!